Difficulty in sanction on smuggled cigarettes

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33,5000 packs of cigarettes detained by the Complex Control Station Km15 – Dan Tien Pier (Quang Ninh) in August 2017. Photo: Manh Cuong

Difficulty in criminal sanction

The preliminary report on 2 years of implementation of Directive 30 on strengthening the fight against cigarette smuggling of the National Steering Committee 389 clearly indicates that according to Decree 124/2015/ND-CP dated 19 November 2015 amending, supplementing and removing some articles of Decree 185/2013/ND-CP dated 15 November 2013 of the Government stipulating the penalty for administrative violations in trade and production of counterfeited and prohibited goods and protection of consumers, acts of trade, smuggle and illegal transport from 500 packs of cigarettes or more are subject to criminal liability.

However, there are some obstacles in the reality, provisions of Clause 2, Article 25 of Decree 185 amended at Clause 22, Article 1 of Decree 124 stipulates that the case of trade in banned goods as smuggled cigarettes from 500 packs and more must be transferred to the criminal proceeding agency for criminal prosecution as prescribed in Article 62 of Law on sanction on administrative violations.

Talking with the reporter, some officers in charge of anti-smuggling of Quang Ninh Customs Department said that the criminal prosecution under Article 62 of Law on the sanction of administrative violations caused difficulties for anti-smuggling agency in handling these acts over the past time. Actually, criminal proceeding agencies only impose criminal sanction on acts of trade, transport of smuggled cigarettes upon conditions as follow: large quantity (valued at more than 100 million VND, equivalent to 14,000 packs) and transport across the border. Hence, the trade and transport of smuggled cigarettes in large quantity in the domestic market or small quantity will not be subject to criminal penalty.

Typically, on 18 August 2017, the Complex Control Station Km15 – Dan Tien Pier (Quang Ninh) inspected a lorry number plate 14C-032.00 from Mong Cai to Hai Ha, and discovered 67 boxes containing 33.500 packs of cigarette brand BLEND NO.555 GOLD manufactured from a foreign country without legal document of origin. Through the investigation and verification, the perpetrator declared that he was hired to carry the above cigarettes by an unknown woman. After receiving the case’s dossiers and exhibits, on 10 October 2017, the People’s Committee of Quang Ninh province released a decision on sanction on the administrative violation (No. 3841/QD-XLVPHC) for Phung Duc Khuong with a fine of 45 million VND and confiscated and destroyed the above cigarettes.

Similarly, earlier on 9 June 2017, the working group under the Station detected that Mr. Nguyen Long Duy, born in 1986 and Nguyen Long Binh, born in 1962 (residing at Hai Yen ward, Mong Cai city), driving a car number plate 14B-005.95 had acts of transport of banned goods as 200 boxes containing 2,000 packs of cigarettes brand 555 made in a foreign country. On 3 July 2017, the People’s Committee of Quang Ninh province issued a decision on sanction on administrative violation No. 2596/QD-XPVPHC for Mr. Nguyen Long Duy and Nguyen Long Binh with a fine of 70 million per each and confiscated and destroyed the cigarettes.

….and administrative sanction

According to the National Steering Committee 389, there are many different opinions about the handling of illegally imported cigarettes.

Specifically, some suggest applying Article 17 of Decree 185 specifying the fine on the value of smuggled goods. Financial agencies at province level (Department of Finance) find it difficult to determine prices of smuggled cigarettes to make the basis for determining sanctioning framework and competence for acts of trade in banned goods as smuggled cigarettes. Others suggest applying Article 25, Decree 185 provisions on violation acts of trade in prohibited goods as illegally imported cigarettes.

However, the application of Article 25 will not comply with Investment Law 2014 and Dispatch 154/TANDTC – PC of the Supreme People’s Court. The Investment Law 2014 (effective from 1 July 2015) stipulates that the trade in tobacco product is subject to the conditional business line. Furthermore, Dispatch 154/TANDTC-PC dated 25 July 2017 guides the people’s court at all levels not to consider smuggled cigarettes as banned goods and not to impose criminal sanction on acts of hoard, transport and trade in illegal imported cigarettes in the domestic market as described in Article 155 of the Penal Code No. 15/1999/QH10 from 1 July 2015 (when the Investment Law comes into effort) to 1 January 2018 (when the Penal Code No. 12/2017/QH14 amending and supplementing a number of articles of the Penal Code No. 100/2015/QH13 will take effect).

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Though the investigation, the Standing Office of the National Steering Committee 389 found that many seizures of illegally imported cigarettes with a quantity from 500 packs or more in Long An province and Vinh Long province had been not handled. In order to have basis to advise the competent authorities to promptly solve difficulties, recently, the Standing Office has held a meeting to review the difficulties and obstacles in term of regulations on the handling of seizures of illegal transported cigarettes with participation of representatives of the forces: Customs, Market Management, Ministry of Justice, the Government’s Office. The representatives have agreed that the Standing Office of the National Steering Committee 389 will advise the head of the National Steering Committee 389 to issue documents to guide the local authorities to handle acts of hoard, transport, and trade of smuggled cigarettes in the domestic market and handle smuggling cases of cigarettes from 500 packs and more. On the other hand, when the Penal Code 12/2017/QH14 is an effect, the sanction for an administrative violation with less than 1,500 packs should be amended and supplemented in accordance with the reality.